Ward v. Coleman

The Tenth Circuit reverses a district court's denial, 7 ELR 20134, of plaintiff's challenge to the use of its notification to the Coast Guard of an oil spill as the basis for subsequent assessment of a civil penalty under § 1321(b)(6) of the Federal Water Pollution Control Act. The statutory language and the administrative enforcement mechanism indicate that the intent of § 1321(b)(6) is primarily punitive in nature. This view is corroborated by the fact that the factors used in determining the amount of a penalty, such as the gravity of the violation, the degree of culpability, and the prior record of the spiller, are based on retributive considerations and do not reasonably relate to a remedial or compensatory purpose or give consideration to the extent of damage to the environment. Thus, because notification of discharge is clearly compelled by § 1321(b)(5), the use of such notification in determining either liability for or the amount of civil penalties imposed under § 1321(b)(6) violates the Fifth Amendment privilege against self-incrimination. The court does not, however, strike down the self-reporting requirements of § 1321(b)(5) or the civil penalty provisions of § 1321(b)(6), providing that the evidence used to establish the discharge is derived from sources independent of the disclosure compelled by § 1321(b)(5). The Tenth Circuit rules that the district court correctly refused, 6 ELR 20722, to convene a three-judge district court under 28 U.S.C. § 2282.